Wrongful Termination Cases

Mary Sullivan vs. Liberty Mutual Insurance Company. Suffolk. December 7, 2004. April 15, 2005. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Sex, Age, Prima facie case. Employment, Discrimination. Discussion of the standard of review when an employer seeks to obtain summary judgment in an action alleging employment discrimination. [38-39] Discussion of the elements of a claim of employment discrimination. [39-40] This court concluded that in an action alleging discrimination in employment in a situation in which the plaintiff has been laid off or otherwise harmed during a reduction in force, the plaintiff may satisfy the fourth element of her prima facie case (i.e., that her employer sought to fill her position by hiring another individual with qualifications similar to hers) by producing some evidence that her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. [40-46] In a civil action alleging sex and age discrimination in employment, the plaintiff established a prima facie case of sex discrimination, where there was undisputed, admissible evidence that the employer retained male attorneys with the same job classification as the plaintiff, who had been rated lower than she had in the last performance evaluation conducted before a reduction in force [46-49]; likewise, the plaintiff established a prima facie case of age discrimination, where the employer retained lower-rated, younger attorneys with the same job classification as the plaintiff [49-50]; however, the employer articulated a credible nondiscriminatory reason for its choice to terminate the plaintiff by demonstrating that it was engaged in a legitimate reduction in force and chose to terminate the plaintiff on the basis of a history of sub-par performance evaluations combined with recent serious complaints from clients about her handling of work [50-54], and the plaintiff failed to establish with credible evidence that the employer’s proffered reasons for her layoff were merely a pretext for a true intent of sex or age discrimination [54-57]. Civil action commenced in the Superior Court Department on May 4, 2000. The case was heard by Patrick J. King, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William. Royal, Jr., for the plaintiff. Lisa J. Damon (Brigitte M. Dujfy with her) for the defendant. Martin J. Newhouse, Andrew R. Grainger, & Benjamin G. Robbins, for New England Legal Foundation & another, amici curiae, submitted a brief. Marshall, C.J. The plaintiff, Mary Sullivan, challenges a Superior Court judge’s order granting summary judgment to the defendant, Liberty Mutual Insurance Company (Liberty), on Sullivan’s sex and age discrimination in employment claims brought pursuant to the antidiscrimination statute, G. L. c. 151B. The case arose from Liberty’s implementation in 1999 of a reduction in force in which it permanently discharged eleven employees in its New England region legal department, including Sullivan. Sullivan appealed. We transferred the case here on our own motion to consider the elements for establishing a prima facie case of discrimination under G. L. c. 151B, when the challenged employment action arises in the context of a reduction in force. We affirm the order granting summary judgment, but for reasons somewhat different from those of the motion judge. 1. Background. We briefly summarize the basic facts in their light most favorable to Sullivan, the nonmoving party, reserving additional facts for later discussion. In 1986, Sullivan began working for Liberty as an attorney representing the company’s insureds, moving to its Boston office in 1988. In June, 1999, precipitated (according to Liberty) by a decline in its business and a recent merger, Liberty implemented a reduction in force. In the months before implementation, Liberty first imposed a hiring freeze and then requested its managerial staff to determine whether each of Liberty’s offices was appropriately staffed. Kenneth A. Latronico, Liberty’s general attorney for its New England region, was charged with analyzing what Liberty referred to as “productivity” and “capacity” for all offices within the region. After receiving information ffom each office, Latronico determined there was no overstaffing in the Connecticut, New Hampshire, or Canadian offices, but concluded there was overstaffing in the five offices in eastern Massachusetts (Andover, Bedford, Boston, Brockton, and Worcester). He recommended, among other actions, a ten per cent staff reduction in eastern Massachusetts and the eventual closure of the Bedford office by relocating its remaining attorneys to other offices. After further consultation with senior management, Latronico then solicited recommendations from each office as to which attorneys to lay off. Latronico himself made the layoff recommendations for the Boston office; he recommended the layoff of Steven Hope, David Hartigan, and Sullivan, in that order. On June 15, 1999, Liberty discharged Sullivan and five other attorneys employed in the New England region, including Hope and Hartigan. Three of the attorneys who were laid off (including Sullivan) worked in the Boston office, two were from the Bedford office, and one was from the Worcester office. Three of the six attorneys terminated were women. Five of the six were over forty years of age; the sixth was thirty-eight years old. At the time of her layoff, Sullivan was forty-nine years old. La-tronico transferred the cases on which Sullivan had been working to six other attorneys, five of whom were men, all of whom were substantially younger than Sullivan. During her twelve years with Liberty, Sullivan had received various performance evaluations, as had other attorneys employed by Liberty. While Sullivan’s reviews were not the highest when compared to other attorneys in the Boston office, her reviews were generally positive. On no occasion had she received an over-all evaluation falling below “meets expectations,” although beginning as early as 1992, Liberty had noted some concerns with Sullivan’s lack of responsiveness to clients, and, later, her “collegiality” and “human relations skills,” especially concerning her interactions with clerical staff. On December 15, 1999, Sullivan filed a charge of discrimination with the Massachusetts Commission Against Discrimination, alleging that she was terminated because of her sex and age in violation of G. L. c. 15IB, § 4. On May 4, 2000, Sullivan commenced this action in the Superior Court against Liberty. See G. L. c. 151B, § 5. Over the following twenty months, the parties engaged in discovery, which included twelve depositions and Liberty’s production of over 2,000 pages of documents. On December 20, 2001, Liberty moved for summary judgment on all of Sullivan’s claims, which Sullivan opposed. A judge in the Superior Court allowed Liberty’s motion, and a different judge subsequently denied Sullivan’s motion for reconsideration. Sullivan timely appealed from the summary judgment as well as from an order granting Liberty’s emergency motion to strike portions of Sullivan’s affidavit, and an earlier order denying her leave to proceed as “Jane Doe.” 2. Standard of review. In cases involving claims of employment discrimination, a defendant employer faces a heavy burden if it seeks to obtain summary judgment: summary judgment is disfavored in discrimination cases based on disparate treatment because the question of the employer’s state of mind (discriminatory motive) is “elusive and rarely is established by other than circumstantial evidence.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), citing Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137 (1976). This requires “the jury to weigh the credibility of conflicting explanations” of the adverse decision. Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440. In reviewing an order granting summary judgment in such cases, we of course apply our traditional test and consider the facts in their light most favorable to the nonmov-ing party, drawing all reasonable inferences in her favor. See Mass. R. Civ. R 56 (c), 365 Mass. 824 (1974); Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438. We may also make “an independent compilation of the relevant facts to frame the ultimate legal question whether summary judgment is appropriate.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). While the standard of review is the same as in all other cases, Liberty, as the moving party, “has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [Liberty] would not have the burden on an issue if the case were to go to trial.” Id. at 127. Liberty may satisfy its burden by demonstrating that Sullivan “has no reasonable expectation of proving an essential element of the case at trial.” Id. And although summary judgment is disfavored in employment discrimination cases of disparate treatment, we have upheld summary judgment in favor of an employer where “the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor.” Id., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. We turn now to consider the record in light of these standards, beginning with an overview of the legal requirements imposed on both Sullivan and Liberty in this reduction in force case. 3. Claims of discrimination. We have construed G. L. c. 151B as containing four elements an employee must prove to prevail on a claim of discrimination in employment: membership in a protected class, harm, discriminatory animus, and causation. See Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). In cases such as this, where the claim is one of discrimination because of sex and age, the first two elements are seldom disputed. Rather, the conflict arises as to the latter two elements. Direct evidence of those elements (discriminatory animus and causation) rarely exists, see Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655, 665 (2000), and a plaintiff may therefore establish one or both by indirect or circumstantial evidence using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Dou glas Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell Douglas). The three-stage order of proof “does not circumvent the plaintiff’s burden to prove all the essential elements of a discrimination claim, but does permit the jury to infer discriminatory animus and causation from proof that an employer has advanced a false reason for the adverse employment decision, in the absence of direct evidence that the actual motivation was discrimination.” Knight v. Avon Prods., Inc., 438 Mass. 413, 422 (2003). See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), citing McDonnell Douglas, supra at 802. As we shall explain later, Sullivan has not produced any direct evidence of either age or sex discrimination. See note 24, infra. We confine our discussion to considering whether she has adduced sufficient indirect or circumstantial evidence to survive summary judgment. 4. The prima facie case. Under the McDonnell Douglas formulation, Sullivan bears the initial burden of establishing by the preponderance of the evidence a prima facie case of discrimination. Her burden is not onerous. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). See also Currier v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004). Sullivan must simply produce sufficient evidence that Liberty’s actions, “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). As the Supreme Court noted in Texas Dep’t of Community Affairs v. Burdine, supra at 253-254, the prima facie case “serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.” For this reason, if she establishes a prima facie case, Sullivan is entitled to a “legally mandatory, rebuttable presumption” that Liberty unlawfully terminated her, and she will prevail on her claims if Liberty fails to satisfy its burden at the second stage of the framework. Id. at 254 n.7. Generally, a plaintiff who is terminated from her position establishes a prima facie case of discrimination by producing evidence that she is a member of a class protected by G. L. c. 151B; she performed her job at an acceptable level; she was terminated; and her employer sought to fill her position by hiring another individual with qualifications similar to hers. See Abramian v. President & Fellows of Harvard College, supra. Liberty does not dispute that Sullivan satisfies the first three elements of this formulation of the prima facie case on each of her discrimination claims. Indeed it is likely that in a reduction in force case every plaintiff claiming sex or age discrimination can easily satisfy the first three elements of the prima facie case. The first and third elements are straightforward. As for the second element, in a reduction of force case the discharge is not the result of the employer concluding that an individual is not performing well: presumably before layoffs, every plaintiff in such a case is performing “at an acceptable level” or she would have been discharged before a downsizing occurs. Rather, the dispute will almost always concern the fourth element, and therein lies the difficulty. As generally formulated, the fourth element is nonsensical in a reduction in force case: the plaintiff is not replaced, nor does her employer “seek to fill” the position, for the very purpose of a workforce reorganization is generally to reduce the number of employees. See Lewis v. Boston, 321 F.3d 207, 214 n.6 (1st Cir. 2003) (in typical reduction of force case fourth element is “unworkable because the plaintiff’s position no longer exists”). Yet it cannot be that every individual in the workforce who falls within some protected class (the overwhelming majority of employees) can establish a prima facie case of discrimination simply because she is laid off during a reduction in force. At the same time, because an employer seeks to reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: “even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.” Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992), quoting Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983). This case presents our first opportunity to consider how the fourth element of the prima facie case must be varied so that a plaintiff who is laid off (or otherwise harmed) during a reduction in force may establish a prima facie case of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, supra (elements of prima facie case “may vary depending on the specific facts of the case”). We begin by examining how other courts have resolved the issue. Some have concluded that the fourth element “should be ‘relaxed’ when the employee’s layoff occurred in the context of a reduction in force.” Marzano v. Computer Sciences Corp., 91 F.3d 497, 503 (3d Cir. 1996). These courts permit a plaintiff to satisfy that element merely by showing that “other unprotected workers were retained.” Id. at 506, quoting DiBiase v. Smith-Kline Beecham Corp., 48 F.3d 719, 723 n.2 (3d Cir.), cert. denied, 516 U.S. 916 (1995). Accord Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 343 (D.C. Cir.), cert. denied, 464 U.S. 994 (1983); Baker v. National State Bank, 312 N.J. Super. 268, 289-290 (App. Div. 1998), aff’d, 161 N.J. 220 (1999). Under that formulation Sullivan would establish a prima facie case by showing, in her sex discrimination claim, that a man was retained during the reduction in force and showing, in her age discrimination claim, that an employee at least five years younger than she was retained. Cf. Knight v. Avon Prods., Inc., supra at 424-425 (age disparity of five years or more between discharged plaintiff and younger replacement satisfies fourth element in age discrimination case). We reject that formulation, as such evidence is insufficient to establish a “legally mandatory, rebuttable presumption” of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, supra at 254 n.7. Other courts have advanced different formulations, each seeking to mesh more satisfactorily evidence establishing the prima facie case with entitlement by the plaintiff to the presumption of discrimination. The United States Court of Appeals for the First Circuit permits a plaintiff to satisfy the fourth element in an age discrimination case through a narrower, more specific showing that the employer retained unprotected or younger workers “in the same position” as the plaintiff (emphasis added). Currier v. United Techs. Corp., supra at 254. This is consistent with the majority view that permits a plaintiff to satisfy the fourth element by producing some evidence “from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue,” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996), quoting Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991), or some similar formulation. Cf., e.g., Currier v. United Techs. Corp., supra (evidence that employer “otherwise did not treat age neutrally” in terminating plaintiff); Fast v. Southern Union Co., 149 F.3d 885, 890 (8th Cir. 1998) (evidence that age was “a factor in the employer’s decision to terminate” plaintiff); Maresco v. Evans Chemetics, supra at 110-111 (evidence that plaintiff was discharged in circumstances “that gave rise to an inference of discrimination”); Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990) (some evidence “tending to indicate” that employer “singled out the plaintiff for discharge for impermissible reasons”). As we shall explain, a formulation along these lines is more satisfactory. The purpose of the prima facie case is to identify those circumstances where the employer’s actions, “if left unexplained, are more likely than not based on unlawful discrimination.” Lewis v. Boston, supra at 216. Stated differently, in the typical case where the plaintiff is not hired or is fired, the existing formulation of the prima facie case “ ‘eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ which are lack of competence and lack of job availability, and thereby creates a presumption of discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). In contrast, in a reduction in force case, “the most obvious explanations for the discharge of any one employee are lower proficiency and/or random chance.” Barnes v. GenCorp., Inc., supra at 1466. When these “most common” nondiscriminatory reasons for the plaintiff’s layoff have been eliminated as possible reasons for the employer’s actions, the presumption of discrimination is established, for “it is more likely than not the employer, who we generally assume acts only with some reason, based [its] decision on an impermissible consideration.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Because there must be “at least a logical connection between each element of th

Ruthlyn Commodore vs. Genesis Health Ventures, Inc., & another. No. 03-P-1623. Suffolk. November 10, 2004. March 2, 2005. Present: Beck, Celinas, & Kafker, JJ. Further appellate review granted, 445 Mass. 1101 (2005). Anti-Discrimination Law, Termination of employment. Nursing Home. Department of Public Health. Contract, Employment. Health Care Facility. Public Health, Health care facility. Joint and Several Obligation. In an action for unlawful employment termination brought by a high-level employee against the owner and licensee of a nursing home as well as the independent company with which the nursing home owner contracted to provide health care services at that facility, the judge erred in granting summary judgment to the defendant nursing home owner on the plaintiff’s employment discrimination claim under G. L. c. 151B, where a genuine issue of material fact existed as to the nursing home owner’s status as a joint employer with the health care services provider, given the nursing home owner’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the relevant Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination [61-65]; further, this court remanded for consideration on a fuller record the issue whether the plaintiff’s equal rights claim under G. L. c. 93, § 102, was barred by the G. L. c. 151B claim [65]. This court concluded that the definition of health care facility set out in G. L. c. 149, § 187(a), encompassed the licensee of a health care facility for purposes of determining violations of G. L. c. 149, § 187(b), the health care whistleblower statute (whistleblower statute) [65-67], and that the requirement that the licensee be jointly and severally responsible for the direction of personnel and the establishment of policies, practices, and procedures that encourage good patient or resident care, included oversight responsibility for violations of the whistleblower statute and was nondelegable. [67] Civil action commenced in the Superior Court Department on December 21, 2000. The case was heard by Peter W. Agnes, Jr., J., on a motion for summary judgment. Paul F. Wood for the plaintiff. A. Lauren Carpenter for the defendants. Doing business as Genesis ElderCare. Omega, Inc., doing business as Center for Optimum Care-Winthrop. Kafker, J. The plaintiff, Ruthlyn Commodore, is a black woman of West Indian origin who alleged that she was unlawfully terminated from her position as director of nursing at the Center for Optimum Care-Winthrop (COC-Winthrop), a nursing home, (1) because of her race, color, and national origin; (2) in retaliation for complaining about unlawful discrimination against herself and other employees; and (3) for objecting to new patient admissions and inadequate staffing that, she said, endangered care and safety at the home. Commodore sought relief under the antidiscrimination statutes, G. L. c. 151B and G. L. c. 93, § 102, and the health care whistleblower statute, G. L. c. 149, § 187. She brought her action against the owner and licensee of the nursing home, Omega, Inc. (Omega), and Genesis Health Ventures, Inc. (Genesis), an independent company selected to provide health care services at the facility. The trial court judge granted Commodore’s motion to dismiss Genesis from her action because Genesis was involved in proceedings under Chapter 11 of the Bankruptcy Act. Thereafter, Omega filed a motion for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 765 (1974), on the ground that Omega was not the employer of Commodore or the other employees at COC-Winthrop. Omega based its motion primarily on the management agreement between Omega and Genesis, which Omega had attached to its answer. Commodore opposed the motion, and requested that, if the judge converted the motion into a motion for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974), he allow her to engage in further discovery to establish that Omega was her employer. At a hearing held five months later, Omega urged the judge to convert the motion for judgment on the pleadings to one for summary judgment. The judge allowed the summary judgment motion four months after that hearing. Commodore then filed a motion under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), to alter or amend the judgment, claiming that she had not been given notice of the conversion or a reasonable opportunity to present evidence. The judge denied that motion. Commodore contends on appeal that (1) the conversion of the rule 12(c) motion into a rule 56(b) motion was improper; and (2) even if it were proper, she had raised a genuine issue of material fact regarding whether Omega was her joint employer. We reverse the judge’s decision allowing the motion for summary judgment. Background. Omega owned and was licensed to operate nursing homes in the Commonwealth. Omega entered into an agreement with Genesis, a Pennsylvania-based health care management corporation, to manage COC-Winthrop and other health care facilities. According to the management agreement, the “Manager,” Genesis, would “select, employ and compensate as an operating expense ... a licensed Facility Administrator and a Director of Nursing for the Facilities.” The administrator and director of nursing would be employees of Genesis, but provide services exclusively to COC-Winthrop and other facilities owned and licensed by Omega and managed by Genesis. The agreement also provided that Genesis would “[hjire, as employees of [Genesis], and discharge, maintain, supervise, and reheve from its employ (as may be necessary in [Genesis’s] discretion) an adequate staff of nurses.” The agreement further provided that Genesis would establish employee benefits and “all personnel policies and procedures,” including “rates of compensation,” “hours of employment,” and “job classifications.” Genesis would also “cause compliance with ah apphcable governmental laws and regulations, specifically including the regulations pertaining to . . . non-discrimination.” The management agreement required the “Owner,” Omega, to provide money to pay for capital and operating expenses, including funding the payroll account. Omega was to be consulted by Genesis on a monthly basis about operational decisions affecting the facility. Omega also had the right to inspect the facihty on twenty-four hours’ notice. The agreement further stated that “[Omega] shall perform those obligations and responsibilities which must be performed by the party hcensed to operate the [facilities.” As the hcensee of the nursing home, Omega was required by the agreement and Department of Pubhc Health regulations to “be responsible for compliance with all applicable laws and regulations of legally authorized agencies.” 105 Code Mass. Regs. § 150.002(A)(2) (1994). In addition, the regulations provide that the licensee “shall be responsible for procurement of competent personnel, and the hcensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care.” 105 Code Mass. Regs. § 150.002(D) (1994). Commodore began working at COC-Winthrop in August, 1999, as the director of nursing. She alleged in her amended complaint that, despite her superior performance, she and “other black, African and West Indian employees of COC-Winthrop/ Genesis [were] treated differently on account of [their] race, color, and national origin.” She alleged that white employees at COC-Winthrop were paid at a higher rate than their black colleagues and disciplined less harshly than black employees for similar conduct. She alleged that she complained to the “COC Winthrop/Genesis” administrator about the discrimination in July, 2000. In May, 2000, another Omega-owned and Genesis-managed facility closed, and its patients were transferred to COC-Winthrop. Commodore alleged that her complaints to COC-Winthrop/Genesis administrators and Genesis managers about understaffing and patient overcrowding resulting from the transfer — in addition to unlawful discrimination — eventually led to the termination of her employment in August, 2000. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). 1. Joint employer status under G. L. c. 151B. a. It is unlawful for an “employer” or his or her agent to discriminate against an individual because of race or national origin or to retaliate against an individual for objecting to such discrimination. G. L. c. 151B, § 4(1) & (4). It is also unlawful for any person “to aid, abet, incite, compel, or coerce” such discrimination. G. L. c. 151B, § 4(5), as amended by St. 1989, c. 272, § 14. Commodore alleges (1) that there was enough evidence to create a triable issue of fact on her claim that Omega — together with Genesis — was her joint employer; and (2) that, if she established a genuine issue of material fact regarding Omega’s status as a joint employer, then the judge improperly allowed summary judgment on her G. L. c. 151B claim, as well as on her G. L. c. 93, § 102, and G. L. c. 149, § 187, claims. The seminal decision on joint employment is Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), a case involving a bus company that had contracted with a maintenance company to service its terminals. The Supreme Court defined the concept of a “joint-employer” as a company possessing “sufficient control over the work of the employees” of another company. The Court described the joint employer determination as “essentially a factual issue.” Ibid. “The basis of [a joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997), quoting from NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3rd Cir. 1982). See Schlei & Grossman, Employment Discrimination Law 1312 (3d ed. 1996). Since Boire, Federal courts have applied joint employer principles to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., and to the Age Discrimination Employment Act of 1967, 29 U.S.C. §§ 621 et seq. Swallows, supra. The Massachusetts Commission Against Discrimination and the Commonwealth’s trial courts have also applied joint employer analysis in G. L. c. 151B cases. Here, we do the same. b. Commodore argues that the requirements imposed on the licensee by 105 Code Mass. Regs. 150.002 (A)(2) and (D) were sufficient to raise a genuine issue of fact regarding Omega’s status as a joint employer. In heavily regulated environments, issues of joint employment are particularly complicated. As we noted earlier, the Department of Public Health regulation, 105 Code Mass. Regs. § 150.002(D), states, in relevant part, that the licensee “shall be responsible for procurement of competent personnel, and the licensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care" (emphasis supplied). The purpose of this regulation, however, is to protect patients, not to define the employment relationships at the nursing home. The regulation does not expressly require that the licensee be the employer of the employees providing the health care. Nor does it preclude the licensee from contracting with an independent company to provide such services, as was done here. Cf. Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 554 (1994) (no error in allowance of summary judgment for hospital as emergency room physician being sued for institutionalizing patient was “part of an incorporated emergency room physicians’ group which provided service to hospital as an independent contractor”). The licensee’s responsibility, as defined by the regulation, is to “procure,” not employ, competent personnel. Nevertheless, even if it exercises its right to contract out health care services, the licensee retains certain residual responsibilities regarding the selection and direction of health care personnel to satisfy its licensing obligation to the Department of Public Health. It also cannot contract away responsibility for the development of policies, practices, and procedures that encourage “quality” patient care. Despite these nondelegable responsibilities, however, we do not interpret this regulation as dictating, as a matter of law, that all licensees are joint employers for the purposes of G. L. c. 151B. It is c. 151B, not the Department of Public Health’s regulation, that provides the “detailed framework . . . [for] employment discrimination” claims. Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). The regulatory requirements do not displace the multi-factor analysis of joint employer status under current antidiscrimination statutes and case law. Rather, the regulatory requirements must be integrated into that analysis. Consideration of the regulation, the management agreement, and the other evidence contained in the record leads us to conclude that the allowance of Omega’s summary judgment motion was error. Omega negotiated for the creation of the director of nursing position in the agreement. It provided the money to pay Commodore’s and all other employees’ salaries. Also, the extent to which Omega contracted away the employment function while still being able to fulfil its obligations as a licensee is unclear from the record. The contract language obscures the issue both by broadly delegating responsibility for the employment relationship to Genesis and leaving Omega the responsibilities required by law and regulation. Those requirements, however, preclude the contracting away of responsibility over personnel issues related to quality patient care. In this regard, the agreement is ambiguous. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (“If a contract ... is unambiguous, its interpretation is a question of law that is appropriate for a judge to decide on summary judgment .... Where, however, the contract . . . has terms that are ambiguous, uncertain, or equivocal in meaning,” the parties’ intentions may depend on disputed material facts). See also Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845-846 (1994) (summary judgment inappropriate where contract language ambiguous, and evidence of trade usage was necessary to interpret contract); Cardone v. Boston Regional Med. Center, Inc., 60 Mass. App. Ct. 179, 186-187 (2003). Neither party has submitted evidence regarding the parties’ actual application of the agreement. See Restatement (Second) of Contracts § 202 comment g, at 90 (1981) (“The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning”). Moreover, Omega, as owner-licensee, retained in the agreement substantial financial control, as well as the right to inspection and the right to monthly consultation regarding operational decisions. However, the record reveals next to nothing about how those rights were exercised under this agreement and what their impact was on Commodore, whose high-level position as director of nursing would have involved her in decisions that would have concerned the owner-licensee of the facility as well as the manager. In sum, given Omega’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination, it is not correct to conclude that Commodore has no reasonable expectation of proving that Omega was a joint employer. Kourouvacilis, 410 Mass. at 716. 2. General Laws c. 93, § 102, claim. The motion judge also allowed summary judgment on the claim arising under G. L. c. 93, § 102 (also known as the Massachusetts Equal Rights Act), on the sole ground that Omega could not be liable as a joint employer. In so doing, he declined to consider whether that claim was barred by the G. L. c. 151B claim. As we have concluded that (1) summary judgment should not have been allowed at this stage on the joint employer question, and (2) neither party has briefed the issue of the interrelationship between G. L. c. 151B and G. L. c. 93, § 102, we also reverse the allowance of summary judgment on the equal rights claim. The issue whether the G. L. c. 93, § 102, claim is barred by the c. 151B claim is better considered on a fuller record after briefing. 3. General Laws c. 149, § 187, claim. The plaintiff also claims that Omega violated G. L. c. 149, § 187(b), the health care whistleblower statute, which provides as follows: “[A] health care facility shall not refuse to hire, terminate ... or take any retaliatory action against a health care provider because the health care provider . . . disclose[s] to a manager ... an activity ... of the health care facility .. . that the health care provider reasonably believes is in violation of a law or rule or regulation ... or [in] violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” There is no question that Commodore is a health care provider. At issue is whether Omega is liable in these circumstances as a health care facility. Omega successfully argued to the motion judge that it was not a health care facility because it did not “employ health care providers.” We conclude that this statute does not call for an analysis precisely parallel to G. L. c. 151B. The focus of G. L. c. 149, § 187, is broader than the determination of employer status, and Omega, as owner-licensee of the health care facility, may be held responsible for G. L. c. 149, § 187, violations, even if it is not a joint employer pursuant to G. L. c. 151B. As provided in c. 149, § 187(a), a “[h]ealth care facility” is defined as follows: “[A]n individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital clinic, convalescent or nursing home ... or other provider of health care services licensed, or subject to licensing by . . . the department of public health; any facility as defined in section 3 of chapter 111B;[] any private county or municipal facility .. . which is licensed or subject to licensing by the department of mental health ... or the department of mental retardation; any facility as defined in section 1 of chapter 123[]...." The statute is specific to the health care industry and is designed to safeguard patient care by protecting the rights of health care providers who expose deficiencies in care that violate laws or regulations or professional standards that endanger public health. The term “health care facility” in G. L. c. 149, § 187, is directed at the facility providing the care, i.e., the hospital, clinic, nursing home, or other health care center. The term is broadly defined. To insure its inclusiveness, and therefore its applicability outside the institutional setting, the definition encompasses any “individual, partnership, association, corporation, or any person or group of persons that employs health care pr

Lois J. Ayash vs. Dana-Farber Cancer Institute & others. Suffolk. October 6, 2004. February 9, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Privacy. Doctor, Employment. Hospital, Peer review, Appointment to staff. Contract, Implied covenant of good faith and fair dealing, Physician, Employment, Interference with contractual relations. Employment, Retaliation. Charity. Corporation, Charitable corporation, Non-profit corporation. Damages, Employment contract, Libel. Libel and Slander. Contempt. A doctor seeking damages against a hospital (her former employer), among others, in connection with a series of events that occurred in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, was not entitled to relief under G. L. c. 214, § IB, on the ground that her right to privacy had been invaded by the hospital’s public disclosure that peer review action was proceeding against the plaintiff or by the hospital’s actions in providing to a newspaper reporter confidential peer review documents that suggested some responsibility on the plaintiff’s part for the overdoses, where the disclosures were limited to the plaintiff’s professional involvement in a matter that already was the focus of a high degree of public scrutiny and interest and were not, in any event, of an exceedingly personal or intimate nature [382-385]; further, even assuming that the hospital breached its implied covenant of good faith and fair dealing by failing to follow the procedure described in its bylaws before restricting the plaintiff’s clinical privileges following the overdoses, the plaintiff failed to demonstrate that she suffered compensable loss as a result of the breach [385-388]; however, where a reasonable jury could conclude that the hospital’s decision not to renew the plaintiff’s appointment was motivated by retaliatory animus fueled by the plaintiff’s filing of a lawsuit against the hospital alleging gender discrimination, judgment in favor of the plaintiff on her claim of retaliation in violation of G. L. c. 151B, § 4 (4), was warranted [388-389]. This court concluded, based on the legislative history and plain language of the statutes in question, that the charitable cap on damages under G. L. c. 231, § 85K, limiting the tort liability of a charitable entity to $20,000, was not applicable to limit damages awarded pursuant to a successful claim of unlawful retaliation in the employment context under G. L. c. 151B, § 4 (4). [389-392] In an action where undifferentiated lump sum damages were awarded against a hospital for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and retaliation, but where the verdicts on the first two claims were vacated on appeal, this court remanded the issue of damages for a new trial. [392-393] In an action brought by a doctor seeking damages against a hospital’s physician-in-chief (defendant), among others, claiming that the defendant intentionally interfered with the contractual relationship between the plaintiff and the hospital by wrongfully inducing the hospital not to extend the plaintiff’s employment in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, the judge erred in denying the defendant’s motion for judgment notwithstanding the verdict, where the verdict against the defendant was tainted by the improper admission in evidence of confidential peer review documents protected under G. L. c. Ill, § 204 (a), and where, in the absence of such evidence, the defendant’s challenged conduct could not be said to be improper in motive or means. [393-399] A Superior Court judge did not abuse his discretion in finding that the ongoing refusal of certain defendants (a newspaper and a newspaper reporter) to comply with a discovery order directing them to disclose certain confidential sources to the plaintiff warranted, as a sanction pursuant to Mass. R. Civ. R 37 (b) (2), that judgments of liability enter in favor of the plaintiff on all of her remaining claims against the defendants, where the defendants’ refusal to comply resulted in the plaintiff’s inability to proceed against other defendants on certain claims, and where the judge left open to the defendants the option to remove the default by complying with the discovery order [399-404]; further, the jury’s award of damages on those default judgments was not clearly excessive in relation to what the plaintiff’s evidence had demonstrated damages to be [404-407]. Civil action commenced in the Superior Court Department on February 1, 1996. After certain discovery matters were heard by Peter M. Lauriat, J., the case was tried before Catherine A. White, J. The Supreme Judicial Court granted an application for direct appellate review. Kenneth W. Salinger (Steven L. Schreckinger with him) for Dana-Farber Cancer Institute & another. Joan A. Lukey (Gabrielle R. Wolohojian with her) for the plaintiff. Jonathan M. Albano (George Freeman, of New York, & Martin F. Murphy with him) for Globe Newspaper Company, Inc., & another. The following submitted briefs for amici curiae: Carl Valvo for Professional Liability Foundation, Ltd., & others. Steven S. Locke for Massachusetts Commission Against Discrimination. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Laura R. Handman & Jeffrey L. Fisher, of the District of Columbia, for ABC, Inc., & others. David M. Livingston, Globe Newspaper Company, Inc., and Richard A. Knox (the latter two collectively referred to as the Globe defendants). Greaney, J. The plaintiff, Dr. Lois J. Ayash, commenced this action in the Superior Court against the defendants, the DanaFarber Cancer Institute (Dana-Farber or the hospital); Dr. David M. Livingston; Globe Newspaper Company, Inc., publisher of the Boston Globe (Globe); and Globe reporter Richard A. Knox, seeking damages in connection with a series of events that occurred in the aftermath of the discovery that two patients enrolled in an experimental breast cancer treatment study at Dana-Farber had mistakenly been administered a four-fold overdose of a highly toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died as a result of the overdose. In her complaint, the plaintiff accused the Globe and Knox (together, Globe defendants) of publishing a series of scathing and inaccurate articles about the overdoses and an alleged coverup by Dana-Farber that erroneously attributed culpability to the plaintiff, thereby destroying her reputation and her well-being. The plaintiff’s complaint also accused Dana-Farber and Livingston (who was physician-in-chief at Dana-Farber at the time of the overdoses and their discovery) of inappropriately focusing public attention on her, by issuing press releases containing confidential peer review information and by secretly providing to Knox other confidential peer review information. This was done, the plaintiff alleges, in order to deflect attention from widespread deficiencies in the hospital that led to the overdoses and in order to protect other physicians at the hospital. The plaintiff’s amended complaint, as far as now relevant, states claims against (1) Dana-Farber for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and unlawful retaliation in violation of G. L. c. 151B, § 4 (4); (2) Livingston for intentional interference with contractual relations; (3) the Globe defendants for libel and defamation; and (4) Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress. During the discovery stage of the litigation, the plaintiff sought the identities of sources consulted by Knox before writing articles, subsequently published in the Globe, that formed, at least in part, the basis of the plaintiff’s lawsuit. After the Globe defendants’ steadfast refusal to provide information that would lead to the identities of Knox’s confidential sources, despite a court order to disclose their identities, a judgment of civil contempt was entered in the Superior Court against the Globe defendants. The Appeals Court vacated the order to disclose and the contempt order, concluding that the defendants had made “some showing” that disclosure of Knox’s confidential sources presented a danger to the free flow of information that was more than theoretical or speculative. See Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384 (1999). On remand, the judge allowed the plaintiff’s renewed motion to compel the Globe defendants to disclose the identities of their confidential sources. When the Globe defendants continued to refuse, the judge ultimately entered, as a sanction pursuant to Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984), pretrial default judgments of liability in favor of the plaintiff on her claims against the Globe defendants. After five weeks of trial (presided over by a different judge than the judge who had dealt with discovery), a jury in the Superior Court found Dana-Farber liable for (1) violation of the plaintiff’s statutory right to privacy under G. L. c. 214, § 1B; (2) breach of the covenant of good faith and fair dealing implied in its employment contract with the plaintiff; and (3) unlawful retaliation in violation of G. L. c. 151B, § 4. The jury also returned a verdict in favor of the plaintiff on her claim that Livingston intentionally had interfered with her employment relationship with Dana-Farber. The jury awarded damages against Dana-Farber in the amount of $180,000 for lost compensation and injury to business reputation, $1,080,000 for emotional distress, and $5,000 in punitive damages; the jury also awarded damages against Livingston in the amount of $120,000 for lost compensation and injury to business reputation, and $720,000 for emotional distress. For the plaintiff’s defaulted claims against the Globe defendants, the jury awarded her the sum of $1,680,000 against the Globe (reflecting $240,000 in economic damages and $1,440,000 in emotional distress damages) and $420,000 against Knox (reflecting $60,000 in economic damages and $360,000 in emotional distress damages). The judge heard motions filed by Dana-Farber and Livingston for the entry of judgment notwithstanding the verdicts; a motion filed by Dana-Farber requesting that the charitable cap, G. L. c. 231, § 85K, be applied to the judgment against it; a motion filed by the Globe defendants challenging the default judgments; and motions for a new trial (or, alternatively, for remittitur) based on excessive damages submitted by all of the defendants. The judge upheld the verdicts against Dana-Farber and Livingston, but agreed that the charitable cap applied to the damages awarded against Dana-Farber. The judge declined to revisit the default judgment (which, as noted, had been entered by another judge). Finally, the judge concluded that damages awarded by the jury, although high, were not excessive and denied all of the defendants’ motions for remittitur. An amended judgment was entered allowing the plaintiff to recover the sum of $20,000 (plus costs and interest) from Dana-Farber. The case is before us on cross appeals. The plaintiff appeals the judge’s application of the charitable cap. Dana-Farber appeals the denial of its motion for judgment notwithstanding the verdicts on the retaliation, privacy and implied contract claims. Livingston appeals the denial of his motion for judgment notwithstanding the verdict on the intentional interference claim. The Globe defendants appeal the imposition of the sanction of default judgment against them. All of the defendants appeal the denial of their motions for remittitur, or for a new trial, on the issue of excessive damages. We granted the parties’ applications for direct appellate review. For reasons that follow, we vacate the judgments against Dana-Farber for invasion of privacy and for breach of the implied covenant of good faith and fair dealing, and against Livingston for interference with employment relations, and direct the entry of judgments for Dana-Farber and Livingston on those claims. We affirm the verdict against Dana-Farber for the G. L. c. 151B unlawful retaliation claim and conclude that the charitable cap set forth in G. L. c. 231, § 85K, does not apply to damage awards for unlawful retaliation under G. L. c. 151B. We affirm the default judgments, and the corresponding damage awards, against the Globe defendants. Vacating the judgments against Dana-Farber for invasion of privacy and breach of the implied covenant creates a defect in the damages awarded against Dana-Farber that necessitates a retrial on damages. Accordingly, we remand the case to the Superior court for a new trial on the damages to be awarded against Dana-Farber. 1. We begin with an overview of the facts in the light most favorable to the plaintiff. See Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 876 (2000); Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). Additional facts will be discussed as they relate to the parties’ claims of error. a. The overdoses and the immediate aftermath of their discovery. In November, 1994, a research fellow at Dana-Farber, Dr. James Foran, accidentally ordered four-fold overdoses of cyclophosphamide, a powerful chemotherapy drug with well known heart toxicity, for two patients in an experimental protocol for breast cancer patients (protocol 94-060) administered under the auspices of Dana-Farber’s Solid Tumor Autologous Marrow Program (STAMP). The plaintiff was protocol chair and principal investigator for protocol 94-060. The overdoses were separately administered to two patients, Betsy Lehman and Maureen Bateman, over the course of four days beginning on November 14 and November 16, respectively. The attending physician on duty at the time the orders were written, and the overdose administered to Lehman, was Dr. Gary N. Schwartz. The attending physician on duty at the time the overdose was administered to Bateman was Dr. Anthony Elias, the director of STAMP. Both patients suffered almost immediate adverse reactions to the cyclophosphamide treatment. Bateman survived the overdose but experienced severe cardiac damage. Lehman died on December 3 as a result of the overdose. An autopsy failed to uncover the cause of her death. The plaintiff began a rotation as the attending physician for Lehman and Bateman on December 1. On the morning after Lehman’s death, the plaintiff inquired of another STAMP team physician, Dr. Richardson, whether the correct chemotherapy dose had been administered to Lehman. Richardson responded in the affirmative. As protocol chair and co-director of the STAMP team, the plaintiff informed the director of protocol administration at Dana-Farber of Lehman’s death and provided him with pharmacological data about the blood levels of cyclophosphamide and its metabolite in Lehman and in other patients participating in protocol 94-060. To the plaintiff, and to other STAMP team physicians, the data appeared inconclusive. At a meeting approximately two weeks later, the plaintiff, based on her earlier conversation with Richardson, informed a group of STAMP team physicians and members of Dana-Farber’s pharmacology department that the cyclophosphamide administered to Lehman had been the correct dosage. During a medical staff retreat, the plaintiff presented the pharmacological data and clinical scenario of all four patients who had undergone protocol 94-060 and stated her view that Lehman’s death most probably reflected a modulation of cyclophosphamide. Those present voiced no disagreement. It was not until on or about February 8, 1995, that a Dana-Farber data manager discovered the overdosing errors. The plaintiff reported the errors to Dana-Farber’s human protection committee on the following day. The hospital immediately notified both patients’ families of the tragic error and suspended all clinical work under protocol 94-060. Livingston, as the hospital’s physician-in-chief, began his own informal investigation into the incident by inquiring of other physicians, including Dr. Schwartz and Dr. Foran, as to their version of events. Livingston, however, did not seek the plaintiff’s view as to what had occurred. Dana-Farber established three committees to investigate the circumstances of the overdoses and the hospital’s subsequent failure to discover them. First, it convened an internal peer review committee, chaired by Dr. Steven E. Sallan (Sallan committee), to focus on how the overdoses occurred and to recommend steps to prevent a similar tragedy in the future. Dana-Farber also appointed an external peer review committee (Devita committee), headed by Dr. Vincent T. Devita, a national leader in oncology and former director of the National Cancer Institute, to review the Sallan committee report and, if necessary, independently investigate circumstances leading to the overdose. Finally, an internal Dana-Farber audit team was established to perform an in-depth investigation of protocol 94-060 itself. On March 22, 1995, Livingston issued two statements. First, in a statement to hospital staff, he described the overdose incidents and the steps that had been, or would be, taken by Dana-Farber in response. Second, in a statement to the news media, Livingston admitted that the overdoses resulted from “human error” and announced that Dana-Farber had “taken additional precautions to ensure that they do not happen again,” including the establishment of “two internal review committees and an external review committee” that had been “asked to examine all issues related to this situation.” Livingston stated that “once all the facts have been fully analyzed, and the causes of the errors identified,” Dana-Farber would “make available to the public the conclusions and recommendations of the committees.” The next day, two physicians and three pharmacists were placed on administrative duty and restricted from clinical practice. The plaintiff was not one of those whose clinical privileges were restricted. b. Reporting of the overdoses by the Globe. The discovery of the overdoses was of considerable public interest. Dana-Farber became the subject of intense media coverage, including that in the Globe. On March 23, 1995, the day after Livingston issued the hospital’s first press release on the overdoses, the Globe published a front page article, authored by Knox, entitled “Doctor’s orders killed cancer patient.” With respect to the overdose administered to Lehman, the article ascribed the erroneous order to a “physician working as a research fellow,” but noted that “[f]ive or six other doctors and nurses countersigned the mistaken order, including Dr. Lois J. Ayash, leader of the team.” The plaintiff was the only physician named in the article as having any connection to the overdose. Moreover, contrary to what was stated in the article, the plaintiff had not countersigned the overdose order, nor was she the “leader of the team.” Despite this error in reporting, no effort was made by Dana-Farber, or by Livingston, to correct the impression that the plaintiff shared responsibility for the overdose error. On March 24, 1995, the Globe published an editorial concerning the overdoses. The editorial characterized the overdose error as “so glaring that any first-year medical student should have spotted it.” The following day, the Globe published an article written by another Globe columnist, Bella English. The column did not mention the plaintiff by name, but described the overdoses as “an appalling series of errors that would make The Three Stooges look like brain surgeons” and stated tha

<bold>Arbitration and Mediation — arbitration — attorney fees</bold> <block_quote> The superior court did not err in a securities broker's defamation, wrongful termination, failure to pay severance benefits, tortious interference with contractual relations, and withholding of referral fees case by affirming an arbitration award granting attorney fees to petitioner even though respondent contends that the arbitration panel lacked the authority to award attorney fees, because: (1) both parties specifically requested attorney fees; and (2) the parties' uniform submission agreement incorporated the New York Stock Exchange (NYSE) Rules, and NYSE Rule 629 allowed a panel of arbitrators to award attorney fees.</block_quote>